MAKOWSKI V. HOLDER

July 3, 2012

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NIJC and pro bono partner McDermott Will & Emery LLP, filed a Privacy Act suit against the Federal Bureau of Investigation (“FBI”) and Department of Homeland Security (“DHS”) on behalf of a U.S. citizen who was wrongly imprisoned. The plaintiff, James Makowski (“Makowski”), became a U.S. citizen through his U.S. adoptive parents when he was approximately one year old, and has permanently resided in the United States since shortly after his birth. Nonetheless, Immigration and Customs Enforcement (“ICE”) unlawfully lodged an immigration detainer against him in July 2010, resulting in his two-month imprisonment in a maximum-security prison.

Pursuant to Secure Communities, when Makowski came into criminal custody in July 2010, law enforcement officials submitted his fingerprints to the FBI. The FBI in turn automatically transmitted Makowski’s prints to DHS’s IDENT database for an immigration background check. The FBI then sent Makowski’s fingerprints to ICE, after which ICE lodged a detainer against Makowski on July 8, 2010. Makowski did not learn of the immigration detainer in place against him until approximately December 2010, after he had pleaded guilty in his criminal proceedings and was being processed for a six-month boot camp through the Illinois Department of Corrections (“IDOC”), which once successfully completed he would have been released on parole. However, because of ICE’s detainer, Makowski was transferred to Pontiac Correctional Center, a maximum-security prison, to serve a seven-year sentence.

Makowski’s family had to seek the assistance of a private attorney to have the unlawful detainer cancelled. The attorney had to make repeated phone calls and travel to ICE headquarters in Chicago, before ICE eventually cancelled the detainer. In the interim, Makowski was incarecerated in a maximum security prison for approximately two months due to ICE's unlawful detainer.

Makowski argues that the FBI’s disclosure of his fingerprints to ICE violates his rights under the Privacy Act, 5 U.S.C. § 552a. Likewise, Makowski alleges that DHS's failure to properly maintian its records violated its obligations under the Privacy record, which caused Makowski to be incacerated for the two months in the maximum security prison. The former INS, now DHS, issued Makowski his certificate of U.S. citizenship in March 1989. However, over 20 years later, in 2010, ICE’s records still indicated that Makowski was not a U.S. citizen.

Briefing in the government's motion to dismiss has been completed and Makowski and his legal team now await a decision from the judge. Makowski is represented by NIJC’s Mark Fleming, and Geoffrey A. Vance, Briordy Tassin Meyers, Jocelyn D. Francoeur, Kristen Klanow, and Nicole Leigh LeBeau of McDermott WIll & Emery LLP.